Rights groups flay LLRC, say whitewashes War Crimes

[TamilNet, Wednesday, 10 November 2010, 04:17 GMT]International Crisis Group, Human Rights Watch and Amnesty International, the three premier human rights watchdogs, today slammed Sri Lanka’s reconciliation commission (LLRC) accusing the commission of failing to “meet basic international standards for independent and impartial inquiries,” and for "proceeding against a backdrop of government failure to address impunity and continuing human rights abuses.” The Rights groups further pointedly attacked the island's legal system saying, “Sri Lanka’s government and justice system cannot and will not uphold the rule of law and respect basic rights.”

Full text of the article appearing in The Nation follows:

Louise Arbour, President and CEO, ICG

Kenneth Roth, Executive Director, HRW

Salil Shetty, Secretary General, Amnesty

While we would welcome the opportunity to appear before a genuine, credible effort to pursue accountability and reconciliation in Sri Lanka, the Lessons Learnt and Reconciliation Commission (LLRC) falls far short of such an effort. It not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses. Our three organisations believe that the persistence of these and other destructive trends indicates that currently Sri Lanka’s government and justice system cannot or will not uphold the rule of law and respect basic rights.

In addition to these broader failings of the government, we believe that the LLRC is deeply flawed in structure and practice. Of particular concern are the following:

Inadequate mandate: Nothing in the LLRC’s mandate requires it to investigate the many credible allegations that both the government security forces and the Liberation Tigers of Tamil Eelam (LTTE) committed serious violations of international humanitarian and human rights law during the civil war, especially in the final months, including summary executions, torture, attacks on civilians and civilian objects, and other war crimes. The need to investigate them thoroughly and impartially is especially urgent given the government’s efforts to promote its methods of warfare abroad as being protective of the civilian population, when the facts demonstrate otherwise.

Nor has the LLRC shown any genuine interest in investigating such allegations. Instead, it has allowed government officials to repeat unchallenged what they have been saying without basis for months: that the government strictly followed a “zero civilian casualty policy”. Indeed, during the testimony of Defence Secretary Gotabaya Rajapaksa on 17 August 2010, the primary intervention of the Commission chairman, CR de Silva, was to prompt the secretary to provide the Commission with a February 14 2009 letter from the International Committee of the Red Cross (ICRC) thanking the Navy for assisting in a medical evacuation.
While highlighting that one letter, the chairman and his colleagues failed to ask the defence secretary about any of the ICRC’s numerous public statements between January and the end of May 2009 raising concerns about excessive civilian casualties, violations of international humanitarian law and insufficient humanitarian access.

The Commission also has not required officials to explain the government’s public misrepresentations during the war. Particularly disturbing are the government’s repeated claims that there were under 100,000 civilians left in the Vanni at the beginning of 2009 when officials later conceded there were some 300,000, and that Sri Lankan forces were not using heavy weapons in civilian areas when the military eventually admitted they were.

Lack of independence: A fundamental requirement for any commission of this type is that its members are independent. The membership of the LLRC is far from that. To start, both chairman de Silva and member HMGS Palihakkara were senior government representatives during the final year of the war. They publicly defended the conduct of the government and military against allegations of war crimes.
Indeed during two widely reported incidents the shelling of the first “no-fire zone” declared by the government in late January and the shelling of Puthukkudiyiruppu (PTK) hospital in February Palihakkara, then Sri Lanka’s representative to the UN, told CNN that government forces had confirmed that even though the LTTE was firing out from the “no-fire zone”, the government was not returning fire; and that the military had confirmed they knew the coordinates of PTK hospital and they had not fired on it.

Beyond his public defence of government conduct during the war, there is also evidence that as attorney general, CR de Silva actively undermined the independence of the 2006-2009 Presidential Commission of Inquiry that was tasked with investigating allegations of serious human rights violations by the security forces.

Most other members of the LLRC have some history of working for the Sri Lankan government. None is known for taking independent political positions, and many have publicly declared their allegiance to the president and government.

Absence of witness protection: Equally worrying is the absence of any provisions for the protection of witnesses who may wish to testify before the Commission. Sri Lanka has never had a functioning witness protection system, nor has the Commission established any ad hoc procedures for witness protection.

The lack of witness protection is particularly crippling in the current atmosphere in Sri Lanka in which government officials label as “traitors” persons making allegations that government forces might have committed violations of international law. Only a brave few have testified before the LLRC about war crimes in the north despite that threat.
Moreover, even though the war is over, the country is still operating under a state of emergency, with laws that criminalise political speech and where there is no meaningful investigation of attacks on government critics. This clearly undermines the Commission’s ability to conduct credible investigations of alleged violations of international or national law. Until effective protection of witnesses can be guaranteed, no organisation or individual can responsibly disclose confidential information to the Commission.

Past commission failures: Our decision to decline the LLRC’s invitation to testify also stems from Sri Lanka’s long history of failed and politicised commissions of inquiry. Amnesty International’s report, “Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry”, documents the failure of successive Sri Lankan governments to provide accountability for violations, including enforced disappearances, unlawful killings and torture.

Today Sri Lanka has no credible domestic mechanisms able to respond effectively to serious human rights violations. The Sri Lankan Human Rights Commission lacks independence and has itself acknowledged its lack of capacity to deal with investigations into enforced disappearances. At the international level, Sri Lanka has 5,749 outstanding cases being reviewed by the UN Working Group on Enforced and Involuntary Disappearances, several hundred of which have been reported since the beginning of 2006.

Should a genuine and credible process eventually be established featuring truly independent commission members, effective powers of witness protection, and a mandate to explore the full range of alleged violations of national and international law; and backed up by government action to end impunity and ensure that police and courts launch effective and impartial prosecutions we all would be pleased to appear.